Doctors appeal rulings that diminish error reporting protections

A column analyzing the impact of recent court decisions on physicians

By — Posted Nov. 19, 2012.

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In two unrelated cases, the Kentucky Court of Appeals ruled that only reports prepared by the accused health professional are protected from public disclosure. Reports and information generated by other staff members involved in the quality improvement process are discoverable during a liability proceeding, even if gathered in accordance with the Patient Safety and Quality Improvement Act of 2005, the court said. The federal law encourages pharmacies, hospitals and physicians to report medical error information to patient safety organizations by assuring that the details of the reports would be shielded from public disclosure.

If the Kentucky decisions stand, quality safety reporting nationwide would be negatively affected and physicians would be discouraged from disclosing errors, said Patrick Padgett, executive vice president for the Kentucky Medical Assn. The association issued a legal brief, along with the Litigation Center of the American Medical Association and the State Medical Societies, opposing the appeals court rulings.

“If the cases are upheld in our courts, it’s going to open up the possibility that the protections afforded under the federal law will not be afforded in other states as well,” Padgett said. “Essentially, a [Kentucky] court is interpreting this federal act in a way that we believe is incorrect. If our state courts interpret it this way, other state courts would use that as precedent.”

In the first case, Tibbs v. Bunnell et al., Luvetta Goff’s family sued several doctors employed by Lexington-based University of Kentucky HealthCare after she died of surgical complications, according to court records. During discovery, the plaintiffs requested incident reports about Goff’s care. The doctors objected, arguing that the reports were protected by the federal Patient Safety Act. A trial court ruled for the plaintiffs, and the defendants appealed.

In an August opinion, the Kentucky Court of Appeals said that only self-examining analysis by the medical professional in question is protected. Other reports must be disclosed, the court said. The defendants appealed that decision to the state Supreme Court.

At this article’s deadline, messages left with attorneys for the doctors in this case were not returned. A spokeswoman for University of Kentucky HealthCare declined to comment. She said defendant neurosurgeon Phillip Tibbs, MD, was out of the country and could not be reached for comment.

In Norton Hospitals Inc. v. Cunningham et al., Jacob Hill’s family sued Louisville-based Norton Hospital for negligence after Hill died at the medical center. He had been admitted for lower-leg paralysis and died due to septic shock, said Nick Naiser, an attorney for the plaintiff. The family requested documents prepared after Hill’s death, but the hospital refused to release the reports, citing the same federal protections. The trial court ordered the hospital to disclose the reports, and the hospital appealed.

The appeals court effectively ruled on this case in the same way as in Tibbs, mandating that all reports were to be released that were not self-examining analyses. The decision was released the same day as the opinion in the first case.

High court review sought

The appeals court was correct to rule that factual documents should be disclosed during medical lawsuits, Naiser said.

The hospital is “attempting to withhold facts to the spouse of someone who passed away because of this alleged federal privilege,” he said. “If this federal privilege can be interpreted to shield facts, that would seriously compromise an injured party’s right to pursue a medical negligence claim.”

But Naiser said he wants the Kentucky Supreme Court to go further than the appeals court ruling and hold that documents created for purposes other than the Patient Safety Act are also exempt from the privilege, and thus can be disclosed. He has filed a separate appeal with the state Supreme Court requesting it address this question.

“The court of appeals got it right as far as that facts are not protected. I don’t think the court of appeals recognized that documents that are created based on another law are [also] specifically excluded” from the privilege under the Patient Safety Act, he said.

The appeals court erred in its analysis of how the federal law applies to protected documents, said Wesley R. Butler, an attorney for Norton Hospital.

The court “uses language that seems to restrict the federal privilege to less than what Congress intended the privilege to be,” Butler said. “The act provides very broad protection for any information that is developed within a patient safety and quality improvement process recognized by the act.” The appeals ruling language, he said, “Not only is it legally wrong, it’s not even consistent with what the federal act provides.”

Medical team collaboration at risk?

The Kentucky Supreme Court’s ruling will be the first interpretation of the Patient Safety Act by a state supreme court, said Michael Callahan, a Chicago attorney and vice chair of the Medical Staff Credentialing and Peer Review Practice Group for the American Health Lawyers Assn. Callahan helped prepare the Litigation Center’s friend-of-the-court briefs in the Norton and Tibbs cases.

In a similar case, the Illinois Appellate Court in June threw out a lawsuit brought by the state that challenged the Patient Safety Act and the scope of its confidentiality protections. In that case, the Illinois Dept. of Financial and Professional Regulation sued the Walgreen Co. pharmacy chain for refusing to release reports of medication errors. Walgreens said the information was prepared as part of its patient safety evaluation system, which is privileged under the law.

No other appeals court has ruled on application of the act, making the Kentucky Supreme Court ruling that much more significant, Callahan said.

“The Kentucky decision will not be binding, and every state court has the ability to make its own independent decision, but you’re going to see other courts looking” at the ruling, he said. “When you’re a judge, it’s going to influence you.”

In its legal briefs, the Litigation Center said unless the Kentucky appellate court’s limitation of the act’s confidentiality protections is reversed, Congress’ goal of encouraging patient safety organizations and health professionals to engage in candid discussions and exchange information will be thwarted.

“Much of the information gathered and reported to [patient safety organizations] comes from individuals in the quality improvement process other than the specific provider in question,” the briefs said. “Indeed, numerous other physicians and health care personnel participate in the process of gathering, reporting, assessing and exchanging information about cases after the initial incident reports are prepared, and this is exactly the type of information the act was meant to encourage and protect.”

The state Supreme Court’s ruling will have a profound impact in jurisdictions where state peer review protections are weak, Padgett said. In Kentucky, health professionals have relied entirely on the federal law for protection over medical error reporting since the Kentucky Supreme Court struck down state protections. Florida and South Carolina error-reporting laws also are weak or nonexistent, Callahan said.

A ruling in favor of doctors would strengthen the Patient Safety Act and provide more security to physicians and others involved in patient safety and quality improvement reporting, he said.

“We’re trying to generate other court opinions embracing the statute and applying the protections,” he said. “The more courts out there that uphold [the act] as good law,” the better it will be for health professionals.

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